May 15, 2011

The title of this post comes from the headline of this important op-ed in today's New York Times by my colleague Michelle Alexander, who is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Here are excerpts:

Thirty years of civil rights litigation and advocacy have failed to slow the pace of a racially biased drug war or to prevent the emergence of a penal system of astonishing size. Yet a few short years of tight state budgets have inspired former “get tough” true believers to suddenly denounce the costs of imprisonment. “We’re wasting tax dollars on prisons,” they say. “It’s time to shift course.”

Newt Gingrich, the former House speaker, shocked many earlier this year when he co-wrote an essay for The Washington Post calling on “conservative legislators to lead the way in addressing an issue often considered off-limits to reform: prisons.”

Republican governors had already been sounding the same note. As California was careering toward bankruptcy last year, Gov. Arnold Schwarzenegger lamented that more money was being spent on prisons than on education. Priorities “have become out of whack over the years,” he said. “What does it say about any state that focuses more on prison uniforms than on caps and gowns?” Another Republican governor, John R. Kasich of Ohio, recently announced support for reducing penalties for nonviolent drug offenders as part of an effort to slash the size of the state’s prison population....

Given this political reality, it is hardly a surprise to read a headline that says, “N.A.A.C.P. Joins With Gingrich in Urging Prison Reform,” rather than the other way around....

What to do now? Understandably, civil rights advocates and criminal justice reformers are celebrating this moment of what Professor [Derrick] Bell calls “interest convergence.” They say we must catch the wave and ride it. Many have given up all hope of persuading the white electorate that they should care about the severe racial disparities in the criminal justice system or the racial politics that birthed the drug war. It’s possible now, they say, to win big without talking about race or “making it an issue.” Public relations consultants like the FrameWorks Institute — which dedicates itself to “changing the public conversation about social problems” — advise advocates to speak in a “practical tone” and avoid discussions of “fairness between groups and the historical legacy of racism.”

Surely the Rev. Dr. Martin Luther King Jr. would have rejected that advice....

Those who believe that righteous indignation and protest politics were appropriate in the struggle to end Jim Crow, but that something less will do as we seek to dismantle mass incarceration, fail to appreciate the magnitude of the challenge. If our nation were to return to the rates of incarceration we had in the 1970s, we would have to release 4 out of 5 people behind bars. A million people employed by the criminal justice system could lose their jobs . Private prison companies would see their profits vanish. This system is now so deeply rooted in our social, political and economic structures that it is not going to fade away without a major shift in public consciousness.

Yes, some prison downsizing is likely to occur in the months and years to come. But we ought not fool ourselves: we will not end mass incarceration without a recommitment to the movement-building work that was begun in the 1950s and 1960s and left unfinished. A human rights nightmare is occurring on our watch. If we fail to rise to the challenge, and push past the politics of momentary interest convergence, future generations will judge us harshly.

I share Michelle's belief that mass incarceration is not going to go away unless and until we have a "a major shift in public consciousness." However, I strongly believe that liberty, not fairness, need to be the guiding principle in this major shift. After all, one big aspect of the modern mass incarceration movement has been an affinity for structured guideline reforms and the elimination of parole all in order to have greater fairness and consistency at sentence. What we have really achieve is less liberty as much, if not more, than less fairness.

Put slightly differently and in the spirit of the headline of Michelle's important op-ed, I strongly believe the prison reform movement needs to focus on civil liberties as much if not more than civil rights. Liberty is a value that all Americans prize and support (at least in their rhetoric), and it is a value that rarely (unlike fairness) can be seen as a zero-sum game.

Comments

“I share Michelle's belief that mass incarceration is not going to go away unless and until we have a ‘a major shift in public consciousness.’”

I see the problem somewhat differently. The current system is out of control because it is unmanageable. It is unmanageable because its decision-making systems are coarse-grained, thereby forestalling public debate about priorities. For example, coarse-grained systems do not distinguish between holding offenders accountable and controlling their risk. Both are viable objectives if they are structured properly, but they are very different. The system should be structured so the public can decide where they want to invest when resources are limited. My guess is that they would choose public safety.

Posted by: Tom McGee | May 15, 2011 2:32:36 PM

The op ed is a meaningless left wing ipse dixit, and irresponsible.

Let's talk about liberty for a second. Is there anywhere that a 12 year old girl has the liberty to walk alone to a friend a quarter mile away? This question is not from is not feminism. It is paternalism.

Why is it that ordinary people must clear the streets after dark has fallen, and the lawyer clients have awakened to to start their rampages, unmolested? Why does half the day belong to the criminals, and the citizens are locked up in their homes?

If liberty includes property rights, why does one have to have the value of one's home fall to nearly zero after a criminal moves in nearby, thanks to the lawyer?

The answer? So lawyers can generate make work government sinecures, protecting their criminal clients from the consequences of their decisions.

"If our nation were to return to the rates of incarceration we had in the 1970s, we would have to release 4 out of 5 people behind bars."

The author seems altogether uncurious about what would happen if our nation were to return to the CRIME rates of the 1970s -- crime rates that, from aught that appears in her piece, had nothing to do with the country's attitude toward incarceration.

Only they had a whole lot to do with it, as anyone who lived in those times knows.

Posted by: Bill Otis | May 15, 2011 4:19:05 PM

"If we fail to rise to the challenge, and push past the politics of momentary interest convergence, future generations will judge us harshly."

Sweetie, I am your ambassador from Earth. You are being judged harshly today. You undervalue the black crime victim. While the victimizer of a white is 90% immune, under the regime of the lawyer, the victimizer of a black is 99% immune. Blacks have nearly no police protection. They take three hours to come, if at all, instead of 3 minutes. They sue discretion to refuse to enforce the law, because it means a little more work. Poverty whores like Sharpton and Jackson, and their armies of lawyers, have deterred the police. Instead of screaming for more protection, they have ruinous litigation if the police tries to do their jobs.

Most unforgivable. Your feminist ilk managed to destroy the black family after it survived slavery, war, lynchings, poverty, discrimination. Before you achieved this hate goal, blacks had slightly higher unemployment, slightly higher crime victimization rates. After you got through with it, the disparities exploded. The heterosexual family is the single best factor that prevents crime. Gone.

Before whites feel any gloating, they are now after the white family. What happened to the black family is now happening to the white family. They put a generous bounty on divorce. Only a fool would get married today,. Thank the lawyer.

And I have yet to see any sort of answer from the release lots of prisoners folks for what we are supposed to do with the persistent low level criminal.

I'm willing to believe that some of that population would cease being a problem if we were to legalize drugs but I think there would still be a significant segment that just isn't willing or able to conform itself to lawful behaviors. Its not the murderers that concern me so much, as they are few in number compared to the petty thieves of all stripes (though I would also guess there is a fair amount of overlap between the two sets). Maybe England had the right idea when they set up Australia as a penal colony.

Posted by: Soronel Haetir | May 15, 2011 5:22:05 PM

Soronel:

We do have a Penal Colony! It is where the greatest criminals of our time go. Unfortunately, the lying B--ST--DS go willingly, and NO media call them out for real truths, just the same old platitudes and, these people get to print real money.

It is called Washington D.C.

What is a crime? It is a deliberate, intended action where there is a physical, financial, property (or maybe emotional i.e. blackmail, extortion, threats) harm to an individual(s). Real crimes justly deserve real punishments

Lying to Congress, the FBI or any Federal Agent should not be a felony crime. Resisting unlawful arrest or detention should not be a felony crime. There are many more examples. Many laws passed in the last 30 years have made LE and prosecutors (who make up the majority of future judges) a lot easier to obtain convictions, whether real crimes or made up crimes are committed.

Look at charge stacking and plea bargaining.

Everyone was happy when it worked against (wink-wink) Al Capone. Now it works against liberty and everyone.

The liberty mind-set has shifted with very small regard to how this has really affected public safety.

Posted by: albeed | May 15, 2011 6:25:55 PM

One has to note, Michelle Alexander is too good to reply to this long list of rebuttals. She is not a "colleague." She speaks for the hierarchy, that wants the crime rate back to what it was. That is the way of the lawyer tyrant.

How can we talk of liberty when there are so many broken windows? How can we talk about what is Worse Than War when S.C. argues his Eliminationism theory? The media is reporting the mass graves in Durango as the worst in the Western Hemisphere, but that ignores the 200,000 Mayas killed by the Guatemalan government in the 1980s.

When we talk of liberty it must be in the context of our Constitution, which built in checks and balances to ensure these kinds of atrocities could never happen here, but all it took was a wink and a nod at the critical point and Eliminationism was alive and well despite the Bill of Rights. If we are going to talk about liberty, it is necessary to talk about some very ugly stuff.

George: There is an excess 5000 murders of black males a year over the expected number from their fraction of the population. Over the 50 years, since the left took over our government that amounts to 250,000 people, future fathers.

Next, the SC has repeatedly signed the death warrants of viable babies without benefit of Fifth Amendment Due Process. What is that number over the past 40 years? A million.

1) The Germans had to break the written law to remove the Jews until it changed in 1943. Prior to that, the judicial system used a German equivalent of legal realism to allow the lawlessness. I oppose legal realism. I support the rule of law, as it is written, and changes should be enacted by the legislature. One difference between the German judiciary and ours. They had one dissenter from this scheme. We have none.

2) My criminals would not be eliminated. Their crimes would be counted. You could throw everything at them, from 1, to 2 and to 3. Rehab, education, supervision, treatment, medications, brain surgery for all I care, any and all kinds of technology. Past a line, it is time to go, after a fair trial. This is utilitarianism, not eliminationism. Life has infinite worth to the person and to the family. To strangers, there should be some value damaged beyond which, it is time to go. All crimes would become strict liability crimes to comply with the Establishment Clause. Intent is from the Catholic Catechism analysis of mortal sin, and is illegal in our secular nation.

3) I treat the lives of crimes victims, of which 17,000 are murdered, as just as valuable as that of the lawyer client. The victims have dark skins. They do not generate massive government make work sinecures as the lawyer client does. I challenge you to even utter the V word. You cannot. You choke on it, because the word would require you to destroy your client, and to lose your job. You are a heartless left wing, big government, rent seeker. The rent comes above all else for you. This makes the left wing position one of bad faith unless you disclose your financial interest in keeping millions of criminals alive.

Thank for your reply, and welcome to Level 2 of the onion of rhetoric underlying my views.

It's difficult to keep this up, but prohibition resulted in a crime wave. Alcohol is the entry drug and causes death and violence. John Kennedy took more durgs than the average street junkie, but did not rob a 7-11. Law enforcement will not solve the problem of the individual with an adiction.

There is a % of the population that will become adicted to a mood altering substance whatever it is.

If we criminalize suger - we will have a crime wave caused by people who want it. If we hire lots of law enforcement officers and prosecutors, we can arrest them all and put them in prison.

Freedom and liberty are most important. The fact that the federal government has made life style issues a crime sets the stage for all other forms of government intrusion and and control. Ron Paul was right. If heroin was made legal tomorrow, the people who are addicted to it are the same as today. The rest of us would not be interested. Laws do not improve mental health, nor do they cure addiction.

Posted by: beth | May 15, 2011 8:33:57 PM

A historical note: the beginning of the upswing in incarceration in our country pre-dated the crime wave of the 1970s. (See historian Heather Thompson's work on this: Mass Incarceration and Postwar American History, reported in the Atlantic). Thompson's historical research shows that politicians "re-calculated crime" in order to gain needed funds from the Law Enforcement Assistance Act of 1965. It was after prison policies first began to significantly increase that an uptick in crime rates began in the 1970s.

Posted by: anonymous | May 16, 2011 1:59:19 AM

i have to agree any member of the future health police dumb enough to tell me i can't have sugar in my daily coffee is gonna be DEAD!

Posted by: rodsmith | May 16, 2011 3:05:40 AM

Rod: They will not tell you you cannot have sugar. By regulation and litigation they will drive the sugar industry down, and none will be available. Or else, the price will be high to pay the legal judgments and legal fees. Enjoy it while you can.

"Thompson's historical research shows that politicians 're-calculated crime' in order to gain needed funds from the Law Enforcement Assistance Act of 1965. It was after prison policies first began to significantly increase that an uptick in crime rates began in the 1970s."

Not so. The increase in crime and crime rates began before the LEAA. Check it out for yourself: http://www.disastercenter.com/crime/uscrime.htm.

In 1962, the murder rate was 4.6 per 100,000 population. By 1970, it was 7.9. That is an increase in eight years of over 70%. During that time, I might note, executions were tailing off to zero. America's de facto moratorium on the death penalty in the late sixties and seventies corresponded exactly with a staggering increase in both the number of murders and the murder rate. Since, over the last generation, we have reinstated the death penalty and have undertaken more than 1100 executions, the murder rate has fallen by more than 40%.

I'll repeat what I said before. The country's attitude toward incarceration has a lot to do with how much crime it's having to deal with. When crime was spiking out of control, the country responded (quite sensibly) with a greater willingness to incarcerate the people who were doing it. Since that time, the crime rate has significantly fallen.

Posted by: Bill Otis | May 16, 2011 10:14:17 AM

Bill Otis suggests "The author seems altogether uncurious about what would happen if our nation were to return to the CRIME rates of the 1970s." Then he lists the violent crime rate for 1970 as 363 per 100K. Fair enough. But go look at the link he gives and what is the most recent violent crime rate? 429 per 100K in 2009, or 18% higher than in 1970. So we incarcerate 5 or more times as many people as in 1970 and have more violent crime. His example made Ms. Alexander's point for her.

"So we incarcerate 5 or more times as many people as in 1970 and have more violent crime. His example made Ms. Alexander's point for her."

Yep, that's the way it reads. Grits(1) Bill(0)

Posted by: Thomas | May 16, 2011 11:34:04 AM

Yup, if you stop with 1970, you get a violent crime rate of 363. However, if you go THROUGH the 1970s -- which is what was being talked about -- you get a very different story.

In 1979, the violent crime rate was 549. In the first year following the close of the decade (1980), it was 596.

Taking the lower figure, the crime rate at the end of the "rehabilitate them" era of the 1970s was a litte more than FIFTY PERCENT HIGHER than it was in 2009, the very peak of "incarceration nation."

Nice try, though.

Posted by: Bill Otis | May 16, 2011 1:15:05 PM

"So we incarcerate 5 or more times as many people as in 1970 and have more violent crime."

But if you look at trends, crime rates have been headed downward since we got tough and are far lower than they were at the peak. Similarly, the upward trend to the peak followed a softening in sentencing policy, a period when incarceration rates actually declined a bit while crime was rising.

I do not claim that such simple facts prove the case in this complex area, but Grits's numbers certainly do not "make" the opposing case.

Everyone on this blog must know that crime hit a peak at about the end of the 1970s, and has been on a 20-year downswing, coinciding more or less exactly with the build up of incarceration. It's not like the figures are a secret.

One may legitimately debate whether the costs were worth it, and whether other factors also contributed (surely they did). But cutting off the inquiry into crime rates at 1970 -- near the BEGINNING of the crime explosion, while ignoring the rest of the decade -- was downright hilarious. If I had tried to script a confession of the weakness of the 1970s "rehabilitate them" model versus the later "incarcerate them" model, I couldn't have done a better job.

But how does one reduce recidivism? This is the million-dollar question that has been itching state officials, policy makers, and California citizens for years. Numerous studies conducted in the 1970s found that there was no consistent way to rehabilitate prisoners and change their post-release behavior.17 Robert Martinson was the ringleader of this theory for he was part of a special New York committee that reviewed and reanalyzed studies on correctional programs. After completing the study, he produced a summary stating that, “with few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.”18 For years, Martinson’s study led people to believe that “nothing worked,” but that is no longer the case. Just a decade later in 1982 a study found that “there is reasonably solid clinical and research basis for the political reaffirmation of rehabilitation.”19 More recently, Joan Petersilia, one of the leading researchers on U.S. criminal justice agencies, has stated, “It is no longer justifiable to say that ‘nothing works.’ There is good scientific evidence that prison and parole programs can reduce recidivism. (p 4)

"As mentioned in the introduction, Martinson’s research stated that the efforts that the correctional system had put forth had no effect on reducing recidivism. This research was a debilitating blow for the correctional system. Beginning around the 1970s a new attitude emerged throughout the country. People began to believe that prison was meant for fairness and justice.50 They were more concerned with controlling crime and punishing criminals who they believed deserved to be in prison than helping them get back on their feet. Thus, this newfound attitude coupled with Martinson’s research led to an upheaval of the correction system. Determinate sentencing and hostility towards rehabilitation and programming were new developments during the next few decades. People were unwilling to support programming and parole because they were convinced by Martinson’s study that it was worthless." (p 13)

The construction of new prisons and longer sentences will not reduce recidivism. Prison activities and post-prison activities in the community need to be linked. Transitional programs should help prisoners obtain jobs, attend counseling, and remain drug and alcohol free. If an ex-convict violates parole they should not be sent back to the state penitentiary, instead they should have some deprivation of liberty (Travis and Petersilia, 2005: 361). The best interests of the ex-offender should also be considered because prisons that do not provide beneficial programs contribute to the problem of recidivism and increased crime rates. (p 32?)

Posted by: etc. | May 16, 2011 3:39:12 PM

etc. --

The "rehabilitation era" lasted roughly during the sixties and seventies, or, as an approximation, from 1960-1980.

The "incarceration nation" era has lasted roughly during the last two decades, or, as an approximation, from 1990-2010.

BJS figures show that the overall crime rate, the violent crime rate, and the murder rate are all significantly lower now than they were at the end of the "rehabilitation era."

Do you dispute those figures?

Posted by: Bill Otis | May 16, 2011 5:28:22 PM

Bill:

Stop pulling critically flawed data out of your butt!!!

You provided the number first. I didn't.

I can tell you're a lawyer and not a scientist. You took the real hard sciences like, "Physics for Poets".

Posted by: albeed | May 16, 2011 10:30:00 PM

Bill and Kent:

I hoped to receive a reply from either of you before now, as I will be unavailable for the next 36 hours to reply.

Just (honestly) look around to understand why we as a nation, are bankrupt.

Overcriminalization for non-harmful crimes. Propaganda by many branches of government and their public service and public union apologists.

Look at the soul of each and every defendent. Very few should be cast into the hell of depravity that you support.

Some, should never be let out of prison ever again.

This is the line that needs honest discussion.

I will rip any crime reduction statistical arguments that you provide. The DOJ had only one statistical argument with any validity, in 1994, and it has been shred to bits for political purposes.

Posted by: albeed | May 16, 2011 11:28:25 PM

albeed --

"Just (honestly) look around to understand why we as a nation, are bankrupt. Overcriminalization for non-harmful crimes. Propaganda by many branches of government and their public service and public union apologists."

We are going bankrupt principally because entitlement spending is out of control. You could eliminate the entire budget for the Department of Justice, all the enforcement agencies, BOP and the federal courts, and our trajectory toward insolvency would be virtually unchanged.

"Look at the soul of each and every defendent."

It is beyond my capacity to peer into a person's soul. I can sometimes figure out a person's intent, as juries are routinely called upon to do, sure.

"Very few should be cast into the hell of depravity that you support."

It is also beyond my capacity to cast anyone into hell, nor do I aspire to such power. Above my pay grade.

Prison is thoroughly unpleasant I'm sure, but hell it is not. It is also the routine punishment for serious crime throughout most of the world.

"I will rip any crime reduction statistical arguments that you provide. The DOJ had only one statistical argument with any validity, in 1994, and it has been shred to bits for political purposes."

I don't understand what you're saying. If it's that the BJS statistics I provided are false, you are free to make the case. Personally, I don't believe for one minute that the Clinton, Bush and Obama administrations have all manipulated the figures. If you do, I doubt anyone can persuade you otherwise, or would try to.

Posted by: Bill Otis | May 17, 2011 5:00:07 AM

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